Citation Nr: 1507736 Decision Date: 02/23/15 Archive Date: 02/26/15 DOCKET NO. 05-28 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed to be the result of toxic chemical exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel REMAND The Veteran served on active duty from January 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. That rating decision, amongst other things, denied service connection for diabetes mellitus, type II. In August 2008, the Veteran testified at a hearing at the RO before a Veterans Law Judge in support of, amongst other claims, his claim for service connection for diabetes mellitus, type II. A transcript of that hearing has been associated with the Veteran's VBMS file. In a November 2009 decision, the Board remanded the claim for service connection for diabetes mellitus, type II for further development and consideration, including obtaining the ship logs for the USS Mitscher, as the Veteran had reported that he was stationed aboard that vessel when he was exposed to various toxic chemicals. The Board also requested that the Veteran be scheduled for a VA medical examination for the purpose of obtaining a nexus opinion concerning the etiology of his diabetes mellitus, type II. In June 2012, the Board again remanded this claim for service connection for diabetes mellitus, type II, because the actions taken by VA failed to comply with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A veteran is entitled to compliance with remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance). Specifically, the Appeals Management Center (AMC), which had done the remand development for the RO, had impermissibly concluded in a formal finding memorandum that it was impossible to verify whether the Veteran was exposed to toxic chemicals at St. Juliens Creek Annex during the time he served aboard the USS Mitscher. The Board disagreed with this finding, however, based on evidence in the file, including the ships logs obtained concerning the USS Mitscher showing it had operated in the waters near the Annex, including in and around the U.S. Naval Station in Norfolk, Virginia, and the Naval Weapons Station in Yorktown, Virginia, and because of additional information provided in an Environmental Protection Agency (EPA) report submitted by the Veteran showing the Norfolk Naval Station is less than one mile from St. Juliens Creek Annex, and that facility was an annex to the Yorktown Weapons Naval Station during the 1970's when he served. In consideration of the proximity of that facility to the locations where the USS Mitscher is known to have docked during that time, as well as its purpose as an "annex" to the weapons station, the Board found it credible that the Veteran would have been sent to St. Juliens Creek Annex to perform duties while his ship was docked in the surrounding area. Consequently, the Board conceded the Veteran's reported work history at the St. Juliens Creek Annex. Further, the Board accepted as credible, the Veteran's statements regarding his exposure to toxic chemicals, particularly, that barrels were punctured by a forklift and he was required to mop up the spilled chemicals. Although it was impossible to know exactly what chemicals the Veteran was exposed to at St. Juliens Creek Annex, he submitted objective evidence proving that multiple chemicals were stored there and, accordingly, the Board conceded toxic chemical exposure. The Board's November 2009 remand also directed the RO/AMC to provide the Veteran with a VA compensation examination for a medical nexus opinion concerning the likelihood that this diabetes mellitus, type II was etiologically related to his conceded exposure to toxic chemicals in service. Although the examination was provided in January 2011, the report of that evaluation only determined that the Veteran's diabetes mellitus, type II, was not caused by exposure to Agent Orange. The Board found that report to be inadequate because the examiner did not provide an opinion on other possible toxic chemicals stored at the St. Juliens Creek Annex. Thus, the Board was also obligated to remand for an adequate medical opinion that complied with the prior remand. 38 C.F.R. § 4.2 (2014); Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one, or at a minimum, notify the claimant why such an exam will not or cannot be provided). Thus, in June 2012, the Board again remanded the matter so that the Veteran could be scheduled for another VA compensation examination for a supplemental determination as to whether the Veteran's diabetes mellitus, type II, was related to exposure to toxic chemicals in service or any other capacity. The examiner was expressly told to refrain from confining his opinion to Agent Orange exposure and to, instead, consider the impact of exposure to other chemicals in determining whether the Veteran's diabetes mellitus, type II, was related to his service. Later that month, the VA examiner provided an etiology opinion, concluding that the Veteran's diabetes mellitus was not caused by exposure to chemicals at the St. Juliens Creek Annex. However, in reaching that conclusion, the examiner erroneously assumed that toxic chemicals were not stored or maintained at that facility. The examiner also failed to opine as to whether the Veteran's diabetes mellitus, type II, was otherwise related to his service. As a result, in February 2013, the Board was again required to remand the claim to ensure compliance. Stegall, supra. In the February 2013 remand, the Board directed the VA medical examiner to consider exposure to all chemicals potentially stored or maintained at St. Juliens Creek Annex and accept as true the Veteran's assertion that he was sent to mop up a toxic substance that had been spilled from a punctured barrel. The examiner was specifically requested to not limit the opinion to Agent Orange. Further, the examiner was requested to provide an underlying medical rationale for the opinion, if necessary citing to specific evidence in the file to support the conclusion. If such a conclusion was not possible, a discussion as to why was required. The examiner was also directed to provide and opinion on whether the Veteran's diabetes mellitus, type II, was otherwise related to his active service. In that remand, the RO was informed that the new examination should preferably be conducted by an endocrinologist. In response to the February 2013 remand, the Veteran again presented for a VA examination, in March 2013. In the resulting report, the examiner noted that the Veteran's diabetes mellitus had resolved following gastric bypass surgery and weight loss, and therefore, erroneously concluded that the Veteran was precluded from service connection. Further, the examiner again indicated that there was no documentation of any toxic substances spilled onto the Veteran and noted that St. Juliens Creek Annex was not a site where Agent Orange was stored. The examiner finally stated that no further opinion could be given without resorting to speculation and conjecture. The Board notes that the VA examiner who conducted the examination was not an endocrinologist, as suggested by the Board, but is rather listed on the VA medical center website as specializing in "family practice." However, because the VA examiner did not explain why an opinion could not be given without resorting to speculation; and because the VA examiner limited the opinion to Agent Orange and ignored the fact that VA had conceded exposure to other toxic chemicals; and because the examiner seemingly ignored the EPA report reflecting the fact that toxic chemicals were, in fact, stored at the St. Juliens Creek Annex; and, finally, because the examiner did not opine regarding whether the Veteran's diabetes mellitus, type II, was otherwise related to his military service, the Board again remanded the issue in July 2013 for an addendum etiology examination that was compliant with its prior remand. Stegall, supra. In that remand, the Board also specifically stated that if the previous VA examiner was not available, the RO should schedule the Veteran for a new examination, preferably with an endocrinologist. Inasmuch as the Board regrets the additional delay of this appeal, an additional remand is required before the Veteran's claim of service connection for diabetes mellitus, type II, can be properly adjudicated. In September 2013, an addendum medical opinion was obtained as required by the July 2013 remand. That opinion was obtained from the same VA examiner who had completed the prior examination; that individual expressed that he could not "concoct any plausible explanation based on scientific evidence or principles without resort to speculation/conjecture and fabrication." The examiner indicated that he put much effort into the case and was not welcome to follow-up inquiries. He further indicated that if any further opinion or clarification was necessary, then it should be obtained from a board certified endocrinologist. The Board appreciates the efforts of the VA examiner. It is clear from the record that such individual has nothing further to offer on the question at hand. However, the Veteran is deserving of a meaningful opinion if one could be obtained- it appears that an endocrinologist might be able to better answer the crucial question of nexus in this case. Therefore, as this could result in a favorable response for the Veteran the Board finds that one more attempt at development would be worthwhile here. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new examination with a Board certified endocrinologist. In the opinion, the examiner must state that he or she is, in fact, an endocrinologist. Have the endocrinologist review the claims file, including a complete copy of this remand and the Board's four prior remands (November 2009, June 2012, February 2013, and July 2013) and the EPA report the Veteran submitted in support of his claim regarding harmful chemicals stored or maintained at the St. Juliens Creek Annex. Thereafter the examiner should provide a medical opinion on the likelihood (very likely, as likely as not, or unlikely) the Veteran's diabetes mellitus, type II, is attributable to his military service from January 1970 to March 1971, but especially to exposure to potentially harmful materials or chemicals (PBCs, pesticides, etc.) stored or maintained at St. Juliens Creek Annex. For the purposes of this opinion, the endocrinologist is required to assume as true the Veteran's assertion that he was sent to this facility and had to mop up a toxic substance that had been spilled from a barrel punctured by a forklift. Indeed the Board has already conceded his service at St. Juliens Creek Annex, that toxic chemicals were stored there, and that he was exposed to such chemicals. The endocrinologist's opinion should broadly encompass any toxic substance to which the Veteran may have been exposed during his service (namely all chemicals mentioned or addressed in the EPA report of record). Specifically, the opinion should not be limited to Agent Orange exposure. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. It is imperative that the endocrinologist discuss the underlying medical rationale for the opinion, including citation to specific evidence in the file and medical treatise evidence supporting any conclusions. If an opinion cannot be provided without resorting to mere speculation, the examiner must discuss the reason(s) why a response is not feasible. Merely saying that he or she cannot respond is an insufficient response. If the VA examiner determines that the Veteran's diabetes mellitus, type II, is not very likely or as likely as not related to his exposure to chemicals at St. Juliens Creek Annex, then the examiner must also comment on the likelihood (very likely, as likely as not, or unlikely) that the Veteran's diabetes mellitus, type II, is otherwise related to a disease, injury or event that occurred during the Veteran's military service. 2. After the requested examination has been completed by an endocrinologist, the AOJ should review the opinion to ensure that the examination report complies with the directives of this remand, to include ensuring that it contains responses to the determinative issues of causation, and acknowledges the concessions that have already been made. If the opinion is deficient in any manner, corrective action must be taken in order to avoid yet another remand. 38 C.F.R. § 4.2. 3. After completing the requested actions, the AOJ should undertake any additional development deemed warranted. Thereafter, the AOJ should re-adjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and be afforded an opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by The United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014). Department of Veterans Affairs